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When I forwarded this link to Beverly Mann I was interested in the following the current thread on civil rights, the legalalities of state use of torture, the continuation in the NDAA exclusion of the prohibition of the use of indefinite detention for domestic 'terrorism', etc. This note is more a lesson for reading newsy items.

Hmm. This is good, but, for complicated procedural reasons--complicated procedural reasons? surprise, surprise!--it’s not quite what it would seem to be to a lay person.

The first tip-off, to me, is that the opinion is an “unpublished,” non-precedential one. Which is what most federal appellate opinions these days are. They’re written quickly, often not very carefully, usually by a judge’s law clerk, and, in several of the regional federal circuit courts (appellate courts), including in this one (the Ninth Circuit), written “per curiam,” i.e., the judge who wrote (or had a law clerk write) it is not identified; it’s just identified as issued by the three-judge panel. These opinions are not published in the formal law books, called the Federal Reporter series, and they do not have the force of law in any case but the one in which they’re issued. They can be mentioned in briefs in later, similar cases, but the judges in the later cases are not required to follow the holding in the earlier, non-precedential case.

This opinion is so truncated and so poorly written that that I had to read it three times in order to understand what the hell was, and was not, decided in it. Two of the three judges--William Fletcher and Raymond Fisher--are among the few really liberal Clinton appointees (I’m much more familiar with Fletcher, who is prominent nationally). And both are really smart. So I’m sort of surprised that they allowed something so garbled to be issued in their name, in a case that, despite the attempt to keep it from making headlines (by making it an “unpublished” opinion), was bound to get some small bit of attention (although your email to me with the link to the article about it is the only thing I’ve seen written about it, maybe because it’s Christmas week and everyone’s on vacation).

The big problem with the way the opinion is written is that it conflates two separate legal doctrines: A longstanding Supreme Court-created legal doctrine called “qualified immunity” and a very new, and highly controversial, Supreme Court-created doctrine just known as “Twombly and Iqbal,” the two recent (2007 and 2009, respectively) Supreme Court opinions that created the doctrine by,in essence, rewriting a statutory federal rule of civil procedure that sets out minimum standards for specificity in a legal complaint (the document in which you file a civil lawsuit) in federal court.

“Qualified immunity” is entirely different than just plain old immunity, although the effect is the same: the defendant can’t be sued. The doctrine of qualified immunity--which the right wing Supreme Court justices keep expanding, notwithstanding their public protestations that they are “textualists” in interpreting statutes (suffice it to say that they most certainly are not)--holds that government officials and government employees cannot be held liable for violations of civil rights unless it already was clearly established in law that their action violated a civil right. Conservative justices and lower-court judges have increasingly required that the action by the government official or employee (e.g., a police officer) be nearly identical to the action at issue in an earlier Supreme Court case or appellate case issued by that federal appellate court (opinions issued by other regional federal appellate courts don’t count); otherwise the defendant official or employee has “qualified immunity” from liability.

“Qualified immunity” applies to people who are employed by, or are acting on behalf of or at the behest of, the federal government or a state or local government. It does not apply to anyone else.
Another Supreme Court-created rule of law on “qualified immunity” is that, although there are almost no circumstances in which a party can appeal from an interlocutory order (an order issued before the entire lawsuit is resolved), government officials and employees can file an immediate interlocutory appeal if the trial-court-level judge denies their motion to dismiss the claims against them as barred by the doctrine of qualified immunity. That’s what happened here.

What’s so confusing is that, normally, the only issues in a “qualified immunity” interlocutory appeal are whether the defendant official or employee did violate a civil right and, if so, whether the law was clear enough at the time to place the defendant on reasonable notice that his or her actions would violate a clearly established civil right. In this case, though, the defendants apparently were not claiming that the civil rights at issue in the part of the complaint that the trial-court judge did not dismiss--First Amendment and Fourth Amendment rights that are relevant to the case--were not clearly established at the time of their actions. They were claiming instead that the complaint didn’t detail their actions that would amount to First and Fourth Amendment rights with enough specificity to satisfy the Supreme Court-created specificity requirement of Twombly and Iqbal (which actually is pretty much the opposite of the level of specificity that the actual statutory rule of federal procedure states).

Normally, that is not an issue that could be decided in an interlocutory appeal. But because the defendants were claiming (I guess) that the complaint was too unspecific to be able to tell whether the actions alleged in the complaint violated a civil right under clearly established law, they could raise this issue in the interlocutory “qualified immunity” appeal. And the three-judge panel said, in essence, that the claim that the defendants’ actions weren’t sufficiently specific to meet the Twombly/Iqbal test was ridiculous. The complaint detailed allegations of fact that could reasonably be seen by a jury as taken for an improper purpose under clearly established First Amendment law, and detailed allegations of fact that would violate the Fourth Amendment under clearly established law.

What was not at issue in the appeal, best as I can tell, is the issue of whether the military has “absolute immunity”--immunity from liability simply because it was the military, and civilians hired by the military, doing these things. Apparently, the defendants did not make that claim, and the article you linked to seems to suggest that that it is a surprise, or anyway that it is a surprise that the appellate court let the lawsuit proceed. It sounds to me like the plaintiffs an their lawyers feared that the government would raise the “state secrets” privilege. Here’s Wikipedia’s explanation of it:

The state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information which might endanger national security. United States v. Reynolds, which involved military secrets, was the first case that saw formal recognition of the privilege.
Following a claim of "state secrets privilege", the court rarely conducts an in camera examination of the evidence to evaluate whether there is sufficient cause to support the use of this doctrine. This results in court rulings in which even the judge has not verified the veracity of the assertion. The privileged material is completely removed from the litigation, and the court must determine how the unavailability of the privileged information affects the case.
But claiming a state-secrets privilege on this would have been preposterous, would not have succeeded, and would have been a public relations disaster. So, while the opinion is nice, it just doesn’t strike me as a big breakthrough. Then again, I’m no expert in national security law, so maybe I’m missing something.

The link to the opinion is file:///media/removable/USB%20Drive/9th%20Circuit%20Deicsion%20affirming%20denial%20of%2012(b)(6)-Iqbal%20(1).pdf.

Not sure you wanted such a long, detailed explanation, but this stuff is so technical that it requires one in order to be of any use.